In 1832, John Austin lectures were published under the title- The Province of
Jurisprudence determined where it defied Law, properly so called, as a
command of sovereign backed by the sanction. There are four basic elements of
Austin theory of positive law- Sovereign, Command, Duty and sanction. His
theory is been criticized on various outcomes such as customs, judge made law,
International law, command theory, relation of law and morals over-looked.
In spite of the above mentioned criticism, the author would throw some light
upon the sanction element and opined its linkage to the present pandemic
situation in India and try to justify the said theory considering the casual
behavior of citizens.
The Austin theory is largely criticized for the reason being that the sanction
is not the only means to induce the obedience and law is obeyed because of its
acceptance by the community. In furtherance of same, law is nothing but a will
of the public and thus cannot be said as mere command of sovereign. Keeping this
argument into consideration, there are few facet which need to be consider.
Firstly, if law is reflection of will of people, then who would justify the
ill-effects of one community of public over another community of people. This
argument gets more balance in this covid-19 situation where Hon'ble Prime
minister has requested the public to maintain Janta curfew. It is nothing but a
classic example to criticize the critics of sanction element. The Hon'ble Prime
minister has given public an occasion to express its will to govern itself in a
particular day for a particular situation.
The same stands followed by one community however at the same time the other
community of the public couldn't followed the general will of the public. This
is exactly a situation where poses a question as who will justify the
ill-effects of one community over another where the general will of public is
not adhered. This, creates a need of sanction element to the public will. The
sanction serve twin purposes, firstly a fear to comply and secondly to control
the ill-effects created by contrary community of the Public.
Janta-curfew and lockdown could have ignored the ill-effect of contrary
community if same was backed by the sanction element. Hence, in this manner, the
john Austin theory of sanction justifies under present case the punishment as
,out of many, solution and is a need to control the ill-effect created by
contrary community of public who believe themselves to be exception to the
binding rule of will of public and therefore sanction is the only way to deal
with this pandemic covid-19.
The views and opinions expressed in this article are those of the authors and do
not necessarily reflect the official policy or position of any agency of the
Indian government. Examples of analysis performed within this article are only
They should not be utilized in real-world analytic products as they
are based only on very limited and dated open source information. Assumptions
made within the analysis are not reflective of the position of any Indian
The author is a Practicing company secretary and founder of Budhiraja & co.
Further, he is a Second Year Law student at faculty of law, University of Delhi
and a Para Legal volunteer with Delhi State Legal Service authority and is an
active Participant in Moot Court society of his college.